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1 Judicial Discretion in Drinking-Driving Cases: An Empirical Study of Influences and Consequences Murray Blumenthal and H. Laurence R oss1,2 A barrier to experimental research on the legal system comes from judges who frequently, and understandably, object to having their judicial discretion replaced in whole or in part by a mechanical schedule called for by a research design. They object on two grounds: first, that they alone under the law are empowered to make certain decisions, such as type or severity of sanction; second, that using a mechanical or pre-set basis for sanction decisions could not duplicate their judicious weighing of relevant factors, thus inevitably leading to inherently unfair decisions and ineffective actions. The counter-argument that this logic applied to medical research would effectively block all progress in the treatment of disease, is generally judged as irrelevant in that according to many judges scientific methods cannot be applied to the human behavior since no two people are alike. This paper reports the results of a recent opportunity to examine empirically the second of the judges assumptions that judicial decision-making takes more relevant factors into account than a decision dictated by research design, and that judicial decision-making is more effective. The presiding judge of the Denver County Court invited us to compare the effects of fines, conventional probation and rehabilitative probation on the subsequent driving records of drivers found guilty of a first charge of driving under the influence of alcohol (DUI) (1). It was agreed that these sanctions would vary each month for 15 months according to a fixed schedule. We agreed also that the judges were free to vary the quantity of the prescribed penalty to fit the individual case and that in exceptional instances, some other penalty, such as a jail sentence, could be administered. We agreed also that defendants treated in an exceptional manner would be dropped from the comparison of the three major sanction effects. We were assured that such deviations would be infrequent and would be discouraged by the presiding judge of the court. We would have preferred a random assignment schedule. However, this was deemed impractical by the court. Shortly after the start of the study the presiding judge was replaced as a result of a municipal election. Although the sitting judges agreed to continue to cooperate with the study it soon became apparent that they were departing from the agreed treatment schedule to an extent far beyond the occasional exception we had expected. ^University of Denver College of Law, Denver Colorado, U.S.A. 2 The research on which this paper is based was supported by the National Highway Traffic Safety Administration (contract No. DOT-HS ). 755

2 756 M. Blumenthal and H. L. Ross Despite repeated reminders to the judges, compliance varied from month to month. At the end of the 15-month treatment period, we found that the judges conformed to the schedule 94 per cent of the time during the months when fines were the agreed sanction; 68 per cent of the time when conventional probation was scheduled and only 48 per cent of the time during rehabilitative probation months. We speculated that since fines were apparently the preferred penalty and since there were more lawyer-represented defendants during the fine months, lawyers had somehow learned of the experiment and had obtained continuances until their clients could appear in court during the fine month. This speculation receives support from our finding that lawyer-represented defendants showed significantly greater delays in the disposition of their charges. In one sense, the judges departures are understandable, for a smooth-running court is strongly dependent on the good will of the lawyers practicing in it. The judge who disappoints lawyers in favor of third-party outsiders over a considerable period of time takes a certain risk. However, the benefit of continuing usual practices to the disadvantage of carefully planned research is in the long run counterproductive. The failure to cooperate with research defeats evaluation, criticism, and hence improvement of the system. Our original intention to compare treatment effects was severely complicated by the judges deviations. However, we recognized the opportunity to gain insights into the exercise of judicial discretion and its consequences. Thus, in addition to our previous objectives we decided to look at the following: a) under what conditions did the judges use their discretion to deviate from the scheduled sanction; and b) what were the differences in subsequent driving records of defendants receiving scheduled sanctions compared to those receiving unscheduled sanctions? CONDITIONS ASSOCIATED WITH JUDICIAL USE OF NON-SCHEDULED SANCTIONS The first deviation from schedule we looked at involved those defendants sent to jail rather than their receiving one of the three agreed sanctions. We found, first, that no female defendants were sent to jail. Therefore, females were dropped from subsequent comparisons of the jail and non-jail groups. As indicated in Table I, no differences were found between the two groups on age, minority status, previous violations, crash associated with the DUI citation that brought them into the sample, or representation by an attorney. However, differences were found in the respective percentages experiencing crashes or in recorded moving violation points during the two years prior to their entrance into the study. Over 59 per cent of those receiving jail sentences experienced one or more crashes as compared with approximately 41 per cent of the non-jail group (p <.05). Similarly, approximately 33 per cent of those sent to jail had 12 or more Colorado violation points as compared with approximately 14 per cent of the non-jail group. Apparently, the judges use of a jail sentence was based on relevant criteria of previous crashes and violation points. Results given below show whether or not the use of the sanction had a beneficial effect on defendants subsequent driving records.

3 TA BLE I Comparison o f Male Defendants Receiving Combined De Facto Sanctions Versus a Jail Sentencea Judicial Discretion 757 Summary of Chi-Square Testing Direction of Differences Age n.s. Minority Status n.s. Previous Crashes <0.05 Defendants with poorer records more likely to receive jail sentence Previous n.s. Previous Violation Points Crash Associated with Criterion Citation Lawyer Representation o Source: Reference (1) p <0.01 Defendants with poorer records more likely to receive jail sentence n.s n.s. We next compared defendants receiving scheduled sanctions to those receiving unscheduled sanctions (other than jail), first during the Conventional Probation months, then during the Rehabilitative Probation period. We did not make a similar comparison during the Fine months, since so few (approximately six per cent) received unscheduled sanctions instead of a fine. During the Conventional Probation months, the only significant difference was a lawyer representation as shown in Table II. Over 48 per cent of the represented defendants received a non-scheduled sanction as compared with approximately 11 per cent of those who were not represented by lawyers. During the Rehabilitative Probation months, lawyers were similarly effective in influencing judicial discretion, with 62 per cent of the represented defendants receiving a non-scheduled sanction as compared with approximately 40 per cent of the non-represented defendants. Females were less likely to receive the scheduled sanction while defendants with poorer previous violation point records were more likely. No differences were found in age, minority status, previous crashes, previous violations or crash associated with the DUI citation that brought the defendant into the study sample (Table III).

4 758 M. B lum enthal and H. L. R oss T A B L E II Com parison o f D efendants R eceiving Scheduled Versus Unscheduled sanctions during the C onventional P robation M onths* Summary of Chi-Square Testing Direction of Differences Age n.s. Sex n.s. Minority Status <0.10 Previous Crashes n.s. Previous n.s. Previous Violation n.s. Points Crash Associated n.s. with Criterion Citation Lawyer <0.001 Represented defendants Representation more likely to receive unscheduled fine asource: Reference (1) p. 38 Thus, except in the use of the jail sanction, our findings support the conclusion that lawyer representation was a major consideration in judicial exercise of discretion in the decision to deviate from a scheduled sanction. CONSEQUENCES OF JUDICIAL DEVIATION FROM THE SCHEDULED SANCTIONS To answer the question concerning the effect of the exercise of judicial discretion in deviating from the use of scheduled sanctions, we compared the records of those receiving scheduled and unscheduled sanctions for one year subsequent to the application of the sanction. We found no significant differences between the subsequent records of defendants given jail and those given non-jail treatment, nor did we find significant differences when we controlled for previous crashes or for previous moving violation points (Table IV).

6 760 M. Blumenthal and H. L. Ross Comparing the subsequent crash and violation records of defendants receiving scheduled rehabilitative probation to those receiving unscheduled sanctions did not yield any significant differences or identifiable trends (Table V). Comparisons, controlled for sex, previous moving violation points and lawyer representation also uncovered no discernible differences. Similar comparisons of scheduled and unscheduled treatments during the Conventional Probation periods, with and without controls for representation, were equally fruitless (Table VI). TABLE V Consequences o f Judicial Use o f U nscheduleda Versus the Scheduled Sanction During Rehabilitative Probation M onths'0 Summary of Chi-Square Testing Variable N d.f. X2 P Crashes n.s. Violation Points DUI Time to First Incident o K Fines or Conventional Probation. Source: Reference (1) p < n.s n.s n.s. Thus, we were unable to find, within the limits of our study, any benefit of the exercise of judicial discretion in deciding to deviate from a schedule of sanctions dictated by a research design. SUMMARY AND CONCLUSION Judges of the Denver, Colorado, County Court agreed to assign penalties of a fine, conventional probation, or rehabilitative probation according to a fixed schedule to 495 drivers convicted of a first offense of driving while intoxicated. However, when judges departed from the schedule in a significant number of cases, the scope of the study was broadened to study the exercise of judicial discretion. Specifically, we set out to find a) under what conditions the judges used their discretion to deviate from the scheduled sanction, and b) what the differences in subsequent driving records of defendants receiving scheduled and those receiving unscheduled sanctions were. Our results did not consistently support the judicial assertion that judicial

7 Judicial Discretion 761 TABLE VI Consequences o f Judicial Use o f Unscheduleda Versus the Scheduled Sanction During Conventional Probation M onthsb Summary of Chi-Square Testing Crashes n.s. Violation Points DUI Time to First Incident afines. Source: Reference (1) p n.s n.s n.s n.s. discretion operates to match or fit the penalty with the crime. Only when comparing the jail to the non-jail groups did a rational basis for sanction assignment appear, with defendants having poorer previous records being sent to jail. When deviations from scheduled conventional or rehabilitative probation were examined, lawyer representation appeared to be the principal influence, with represented defendants most often receiving a preferred fine. In addition, the results did not show any advantageous differences in driving records for defendants receiving the unscheduled sanctions. Thus, our study questions one objection to research a legal setting...that using a mechanical or pre-set basis for sanctioning decisions could not duplicate judges weighing of relevant factors, thus inevitably leading to inherently unfair decisions and ineffective actions. The legal basis for objecting to even temporary limitations on judicial discretion for empirical research purposes was not within the scope of this paper and remains in need of continuing critical examination by legal scholars. The broader question raised by our research concerns the effectiveness of our legal institutions in reaching their assigned goals. At present, such goals are stated ambiguously, without provision for evaluating systematically the extent to which they are reached. We recently proposed (2) a legislative enactment of required goal setting, evaluation and reporting as reproduced in Appendix A. Enactment of such legislation would go far to change the present climate of the courts, with their defensive concern for ritual and possibly out-dated prerogatives, towards an emphasis on outcomes, feedback and institutional change.

8 762 M. Blumenthal and H. L. Ross APPENDIX A PROPOSED LEGISLATIVE ENACTMENT (2) Section Goal Setting and Reporting 1. The Coordinator of Highway Safety shall develop drinking-driving countermeasure goals at regular intervals with the assistance of those governmental agencies responsible for parts of the state s drinking-driving countermeasure programs and after consultation with relevant citizens groups. 2. The statement of these goals shall include: a) planned application of the countermeasures by relevant agencies; b) the extent to which the programs are intended to modify the public s drinking-driving behavior patterns; and c) the extent to which the programs are intended to modify the rates and totals of alcohol related traffic violations crashes. Where possible, these goals shall be stated quantitatively. 3. On or before [a date specified by the Governor] the Coordinator shall make an initial report to the Governor, the [General Assembly], and the public, of the goals developed pursuant to Section (1). Section Evaluation and Reporting 1. The Coordinator of Highway Safety shall, to the extent feasible, insure that the major drinking-driving countermeasure programs are susceptible to scientific evaluation and shall provide for such evaluation at regular intervals. Evaluation shall be carried out by the [Coordinator of Highway Safety] or any qualified agency or private organization. 2. The evaluation of these programs shall include at a minimum the extent to which: a) the programs are applied by the relevant public agencies; b) the programs are effective in modifying drinking-driving behavior patterns; and c) the programs are instrumental in modifying the rates and totals of alcohol related traffic violations and crashes. 3. On or before [a date specified by the Governor] the Coordinator shall report annually to the Governor, the [General Assembly], and the public, on the planning, findings and recommendations of the evaluation. REFERENCES 1. Blumenthal, M. and Ross, H., Two Experimental Studies o f Traffic Law, Volume I: The Effect of Legal Sanctions on DUI Offenders, U.S. Department of Transportation, Washington D.C., February, Reese, J. H., Beaney, W. M., Blumenthal, M., Ross, H. L., and Tiffany, L. P., The Drinking Driver: An Interdisciplinary Approach to the Legal Management o f a Social Problem, U.S. Department o f Transportation Washington D.C. July 1, 1973.

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